Solum on NFIB v. Sebelius and the Constitutional Gestalt

The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).

After Sebelius, the constitutional gestalt is unsettled. In Sebelius, five justices of the Supreme Court endorsed a view of the commerce clause that is inconsistent with the constitutional gestalt associated with the New Deal Settlement. A fissure has opened in constitutional politics, creating space for an alternative constitutional gestalt. The core idea of the alternative view is that the New Deal Settlement did not create plenary and virtually unlimited legislative power; instead, proponents of the New Federalism argue that New Deal and Warren Court cases establish only the constitutionality of particular federal programs and specific zones of federal power. The most important indirect effect of Sebelius is that it enables constitutional contestation over the content of the constitutional gestalt and the meaning of the New Deal Settlement.

This is a revised draft and replaces the draft of October 16, 2012, which is now on file with the author.

This is a substantially revised version of the paper I posted in October. The new draft provides a much more detailed analysis of the precedential effect of NFIB and it offers a fuller account of the idea of "constituitonal gestalt." As always, comments are welcome, as is interest from law reviews: you can contact me at this email address: lsolum (at) gmail (dot) edu.